In these times, terrorists, whose training manuals teach them to fabricate claims of torture, can sue law enforcement officers for damages in our courts for having the temerity to interrupt their plans. If we’ve dispensed with the idea of keeping disputes between individuals and states out of the courts, it’s at least just to allow American victims of torture to seek compensation against those — including foreign states — who wronged them.
A few years ago, Congress removed an impediment that stood between American victims and obtaining justice against the states that committed or sponsored the atrocities against them by amending the Foreign Sovereign Immunities Act. The amendment removed the traditional immunity afforded to foreign governments that were listed as state sponsors of terrorism “for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources” for terrorism.
Chris Hill managed to throw the blanket of immunity back over his friends in Pyongyang before Esther Kim thought to sue for the murder of her husband, but not before the crew of the U.S.S. Pueblo filed suit to extract one last devastating act of vengeance on their captors:
A federal judge on Tuesday awarded more than $65 million to several men who were captured and tortured by North Korea after the communist country seized the U.S. spy ship USS Pueblo during the Cold War.
North Korea never responded to the lawsuit filed by William Thomas Massie, Donald Raymond McClarren, Dunnie Richard Tuck and the estate of Lloyd Bucher. U.S. District Judge Henry H. Kennedy Jr. entered the judgment against the country. [….]
The USS Pueblo was seized off North Korea while it was on an intelligence-gathering mission on Jan. 23, 1968. The North claimed the ship was inside its coastal zone while the U.S. Navy contended it was in international waters. One of the U.S. ship’s 83 crew members was killed and 10 others were wounded. The crew members, led by Cmdr. Lloyd Bucher, were released after 11 months of captivity and sometimes torture. [….]
Kennedy called the treatment of Massie, Tuck, McClarren and Bucher “extensive and shocking. Some of the torture described to Kennedy included “severe physical beatings with karate blows, broom handles, belt buckles, boards and chairs, along with punches with rifle butts and whatever else that was handy.
“Massie, Tuck, McClarren, suffered physical and mental harm that has endured for the past 39 years and likely will continue to endure throughout the rest of their lives. Cmdr. Bucher suffered such effects until he died” in 2004, Kennedy said. Massie, McClarren and Tuck each received $16.7 million. Bucher’s estate received $14.3 million and his wife, Rose, $1.25 million. [AP, Jessie J. Holland]
The obvious question this raises is how, exactly, the plaintiffs will manage to collect their money. By now, their lawyers must be taking a close look at Rule 69 of the Federal Rules of Civil Procedure, which permits district courts to issue writs of execution when it’s apparent that the defendant intends to avoid paying the judgment. In this case, North Korea never even showed up to contest liability, and the regime’s disregard for every conceivable standard of international law and morality speaks for itself. The law of the state having jurisdiction of the suit will govern, but most of the applicable case law is in the Southern District of New York, and generally holds that (1) it is difficult, but not impossible to enforce a writ overseas; and (2) that a writ can be executed against the proceeds of an unrelated lawsuit. A good first step would be to invoke Rule 69(a)(2)’s discovery provisions, which would either help the plaintiffs follow the money or help demonstrate that the North Koreans intend to evade payment.
Which brings me to the answer of where the money might come from, in addition to assets related to North Korea’s minimal commerce with the United States. Recall that several weeks ago, I told you that North Korea had won a lawsuit of its own against several insurers in a British court over a suspicious helicopter crash several years ago, for 39 million euros. with the current exchange rate at 1.36 dollars per euro, the new Pueblo judgment greatly exceeds the judgment against Lloyds, and hopefully, the Pueblo lawyers are looking into ways to obtain a lien against what Lloyds would otherwise pay to the North Koreans.
That’s an elegant solution for another reason, which is that Lloyds may not be able to pay the North Koreans without violating U.N. Security Council Resolution 1718 anyway. Recall that 1718 requires those paying funds to North Korea to obtain certain assurances about how the money will be used:
8(c) all Member States shall, in accordance with their respective legal processes, freeze immediately the funds, other financial assets and economic resources which are on their territories at the date of the adoption of this resolution or at any time thereafter, that are owned or controlled, directly or indirectly, by the persons or entities designated by the Committee or by the Security Council as being engaged in or providing support for, including through other illicit means, DPRK’s nuclear-related, other weapons of mass destruction-related and ballistic missile-related programmes, or by persons or entities acting on their behalf or at their direction, and ensure that any funds, financial assets or economic resources are prevented from being made available by their nationals or by any persons or entities within their territories, to or for the benefit of such persons or entities; [UNSCR 1718]
The prohibited purposes include WMD, WMD components, WMD financing, most conventional weapons except for small arms, and luxury goods. But does this apply to court-ordered judgments? Yes, with some exceptions that don’t appear to apply here:
“9. [The Security Council] Decides that the provisions of paragraph 8 (d) above do not apply to financial or other assets or resources that have been determined by relevant States: [….]
(c) to be subject of a judicial, administrative or arbitral lien or judgement, in which case the funds, other financial assets and economic resources may be used to satisfy that lien or judgement provided that the lien or judgement was entered prior to the date of the present resolution, is not for the benefit of a person referred to in paragraph 8 (d) above or an individual or entity identified by the Security Council or the Committee, and has been notified by the relevant States to the Committee;
Skillful lawyering on both sides of the Atlantic would mean that while the Lloyds defendants are trying to obtain the necessary assurances to comply with 1718, the Pueblo defendants are filing writs of execution and working out the process of filing liens against the Lloyds judgment, or any other North Koreans funds they identify worldwide.